Citation Nr: 0836318
Decision Date: 10/22/08 Archive Date: 10/27/08
DOCKET NO. 94-22 923 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder.
2. Entitlement to service connection for chronic fatigue
syndrome, to include as a result of an undiagnosed illness.
3. Entitlement to service connection for disability
exhibited by shortness of breath, to include as a result of
an undiagnosed illness.
4. Entitlement to service connection for disability
exhibited by insomnia, to include as a result of an
undiagnosed illness.
5. Entitlement to service connection for disability
exhibited by ringing in the ears, to include as a result of
an undiagnosed illness.
6. Entitlement to service connection for disability
exhibited by right upper extremity symptoms, to include as a
result of an undiagnosed illness.
7. Entitlement to service connection for back disability, to
include as a result of an undiagnosed illness.
8. Entitlement to service connection for left shoulder
disability, to include as a result of an undiagnosed illness.
9. Entitlement to service connection for bilateral knee
disability, to include as a result of an undiagnosed illness.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
WITNESS AT HEARING ON APPEAL
Veteran's psychiatrist
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The veteran served on active military duty from August 1969
to April 1971 and from January 1991 to October 1991. During
that time, and specifically from February 1991 to September
1991, the veteran served in Southwest Asia. In addition, the
veteran had various periods of reserve service.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from two rating actions of the Department
of Veterans Affairs (VA). Specifically, in a January 1994
decision, the VA Regional Office (RO) in San Juan, the
Commonwealth of Puerto Rico denied service connection for
post-traumatic stress disorder (PTSD). Also, in a December
1995 determination, the RO in Nashville, Tennessee denied
service connection for left shoulder, bilateral knee,
fatigue, shortness of breath, insomnia, ringing in the ears,
right upper extremity, and back symptoms, to include as a
result of an undiagnosed illness.
In October 2003, the Board remanded the veteran's appeal to
the San Juan RO, through the Appeals Management Center (AMC)
in Washington, D.C. for further evidentiary development.
Following completion of the requested actions, as well as a
continued denial of the issues on appeal in December 2007,
the AMC returned the veteran's case to the Board for further
appellate review.
The left shoulder and bilateral knee claims are addressed in
the REMAND portion of the decision below and are being
REMANDED to the RO via the AMC, in Washington, DC.
FINDINGS OF FACT
1. The veteran does not have PTSD.
2. The veteran does not have chronic fatigue syndrome, and
he does not exhibit fatigue symptoms due to any undiagnosed
illness that are manifested to a degree of at least 10%.
3. The veteran does not have a disability manifested by
fatigue that is associated with his service.
4. The veteran does not exhibit shortness of breath due to
any undiagnosed illness that is manifested to a degree of at
least 10%.
5. The veteran does not have a disability manifested by
shortness of breath that is associated with his service.
6. The veteran does not exhibit insomnia due to any
undiagnosed illness that is manifested to a degree of at
least 10%.
7. The veteran does not have a disability manifested by
insomnia that is associated with his service.
8. The veteran does not exhibit ringing in the ears due to
any undiagnosed illness that is manifested to a degree of at
least 10%.
9. The veteran does not have tinnitus associated with his
service.
10. The veteran's right upper extremity symptoms have been
attributed to the known clinical diagnosis of arthritis of
the right shoulder.
11. The veteran did not exhibit chronic right shoulder
disability in service or arthritis of the right shoulder
within one year of separation from service, and no such
diagnosed disorder is associated in any way with his active
military duty.
12. The veteran's back symptoms have been attributed to the
known clinical diagnosis of moderate degenerative
mid-thoracic spondylosis.
13. The veteran did not exhibit chronic back disability in
service, and degenerative mid-thoracic spondylosis is not
associated in any way with his active military duty.
CONCLUSIONS OF LAW
1. PTSD was not incurred or aggravated in service.
38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.304(f) (2007).
2. The criteria for a grant of service connection for a
disability manifested by chronic fatigue, including chronic
fatigue syndrome, have not been met. 38 U.S.C.A. §§ 1110,
1117, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2007).
3. The criteria for a grant of service connection for a
disability manifested by shortness of breath, including as a
result of an undiagnosed illness, have not been met.
38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.317 (2007).
4. The criteria for a grant of service connection for a
disability manifested by insomnia, including as a result of
an undiagnosed illness, have not been met. 38 U.S.C.A.
§§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317
(2007).
5. The criteria for a grant of service connection for a
disability manifested by ringing of the ears, including as a
result of an undiagnosed illness, have not been met.
38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.317 (2007).
6. The criteria for a grant of service connection for a
disability manifested by right upper extremity pain,
Including as a result of an undiagnosed illness, have not
been met, and arthritis of the right shoulder may not be
presumed to have been so incurred. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309, 3.317 (2007).
7. The criteria for a grant of service connection for a
disability manifested by back pain, including as a result of
an undiagnosed illness, have not been met. 38 U.S.C.A.
§§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties To Notify And To Assist
The Veterans Claims Assistance Act of 2000 (VCAA), which was
enacted on November 9, 2000, eliminated the concept of a
well-grounded claim, redefined the obligations of VA with
respect to the duty to assist, and imposed on VA certain
notification requirements. Since the enactment of the law,
the VCAA has been codified at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, & 5126. This change in the law is
applicable to all claims filed on or after the date of
enactment of the VCAA and to those claims which were filed
before the date of enactment but which were not yet final as
of that date.
Upon receipt of a complete or substantially complete
application for benefits, VA is ordinarily required to notify
the claimant and his/her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record that is necessary to substantiate the
claim, that VA will seek to provide, and that the claimant is
expected to provide. Pelegrini v. Principi, 18 Vet. App.
112, 121 (2004).
Additionally, the United States Court of Appeals for Veterans
Claims (Court) has held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim. Those five
elements include: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and
(5) effective date of the disability. Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006). The Court also
explained that proper notification must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
In the present case, a November 2004 letter notified the
veteran of the criteria for his service connection claims.
In addition, this document informed him that VA would make
reasonable efforts to help him obtain necessary evidence with
regard to these issues but that he must provide enough
information so that the agency could request the relevant
records. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004) (Pelegrini II); VAOPGCPREC 1-2004 (February 24, 2004);
and Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
Also, in December 2007, the veteran was informed of the type
of evidence necessary to establish the degree of disability
(element #4) and an effective date (element #5). See
Dingess/Hartman, 19 Vet. App. at 488. In any event, as the
Board will discuss in the following decision, the criteria
for the veteran's service connection claims have not been
met. Thus, no ratings or effective dates will be assigned,
and there can be no possibility of any prejudice to the
veteran in proceeding with the issuance of a final decision
of the claims adjudicated in this decision. See Bernard
v. Brown, 4 Vet. App. 384, 394 (1993).
Clearly, the November 2004 and December 2007 correspondence
was issued after the initial adjudication (and denial) of the
veteran's service connection claims in January 1994 and
December 1995. Thereafter, however, the veteran's claims
were re-adjudicated, and, in light of the continued denial of
those issues, a supplemental statement of the case (SSOC) was
issued. As such, the timing defect occurring in the present
appeal was cured. Pelegrini II. See also VAOPGCPREC 7-2004
(July 16, 2004) and Mayfield v. Nicholson, 444 F.3d at 1333.
Additionally, the VCAA requires VA to make reasonable efforts
to help a claimant obtain evidence necessary to substantiate
his/her claim. 38 U.S.C.A. §§ 5103A (West 2002); 38 C.F.R.
§ 3.159(c), (d) (2007). This "duty to assist" contemplates
that VA will help a claimant obtain records relevant to
his/her claim, whether or not the records are in Federal
custody, and that VA will provide a medical examination
and/or opinion when necessary to make a decision on a claim.
38 U.S.C.A. §§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2007).
In the present case, the Board finds that the duty to assist
provisions of the VCAA have been fulfilled with respect to
the issues on appeal. All relevant treatment records
adequately identified by the veteran have been obtained and
associated with his claims folder. A copy of the most recent
SSOC was furnished to the veteran's representative in
December 2007. The representative declined to submit any
further argument in support of the veteran's appeal.
Additionally, the veteran has been accorded several pertinent
VA examinations.
The Board acknowledges that the veteran has not been accorded
a VA examination relevant to his claim for service connection
for ringing in the ears, to include as a result of an
undiagnosed illness. As the Board will discuss in the
following decision, however, the claims folder contains no
competent evidence of a chronic disability manifested by
ringing in the veteran's ears to a degree of at least 10% and
no competent evidence of a diagnosis of tinnitus.
Consequently, the Board concludes that a remand to accord the
veteran a VA examination pertinent to this service connection
claim is not necessary. VA's duty to assist is not invoked
where "no reasonable possibility exists that such assistance
would aid in substantiating the claim." 38 U.S.C.A.
§ 5103A(a)(2); Charles v. Principi, 16 Vet. App. 370 (2002);
McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Accordingly, the Board finds that VA has done everything
reasonably possible to notify and to assist the veteran in
the development of the claim adjudicated in this decision.
Under the circumstances of this case, additional efforts to
assist the veteran in accordance with the VCAA would serve no
useful purpose. See, Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (which holds that strict adherence to requirements
in the law does not dictate an unquestioning, blind adherence
in the face of overwhelming evidence in support of the result
in a particular case and that such adherence would result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran). See also, Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (which holds that remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided). Importantly, the veteran has pointed to no
other pertinent evidence which has not been obtained. In
fact, in response to the most recent SSOC which was issued in
December 2007, the veteran responded shortly thereafter that
he had no other information or evidence to submit.
Consequently, the Board will proceed to adjudicate the
following issues on appeal, based upon the evidence currently
of record. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002);
38 C.F.R. § 3.159(b) (2007); Pelegrini II; Quartuccio
v. Principi, 16 Vet. App. 183 (2002).
II. Analysis
A. Service Connection for PTSD
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty in the active military, naval, or air
service. 38 U.S.C.A. § 1110 (West 2002). That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b) (2007). Service connection may be
granted for any injury or disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d) (2007).
Service connection for PTSD in particular
requires: (1) medical evidence diagnosing this disability in
accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of
a link between current symptomatology and the claimed
in-service stressor; and (3) credible supporting evidence
that the claimed in-service stressor actually occurred.
38 C.F.R. § 3.304(f) (2007).
Although the veteran has consistently claimed that he served
in combat in both the Republic of Vietnam and during his
service in the Persian Gulf, his service personnel records do
not substantiate his purported participation in combat. His
purported in-service stressors include seeing wounded and
dead servicemen at the front line when he went there to
distribute pay during his Persian Gulf service between
February and September 1991. He also maintains that he heard
bombs exploding and sometimes assisted in the retrieval of
dead bodies during his service in Vietnam.
The appropriate stressor-corroborating agency has confirmed
that Dhahran, Saudi Arabia [the location of the veteran's
base camp (prior to his deployment)] was subjected to several
Iraqi missile attacks on February 25, 1991. Significantly,
however, this agency was unable to confirm whether the
veteran was at that base camp at that time or was at another
location in Saudi Arabia.
Further, despite several requests, the veteran has not
provided more specific description of his stressor incidents
such as dates, places, or names of individuals involved. The
descriptions, as submitted by the veteran, are so vague that
any further attempt to corroborate them would be futile.
Moreover, the overall evidence of record indicates that the
veteran does not have PTSD. Outpatient records reflect
diagnoses of PTSD between September 1993 and April 2003.
However, the veteran was found to be unfit for reserve
service in April 1994 due to an affective disorder and major
depression. Subsequent medical records reflect consistent
findings of major depression as well as anxiety and
vegetative signs secondary to family problems. VA
examinations in 1993 and 1994 were negative for PTSD. The
veteran underwent a psychiatric examination by a board of 3
psychiatrists who concluded that he did not exhibit PTSD.
Most recently, following review of the claims folder and an
interview with the veteran at the July 2007 VA examination,
the examiner diagnosed a depressed mood.
Clearly, a preponderance of the competent evidence of record
illustrates that the veteran has a psychiatric disability
other than PTSD. As a clear preponderance of the evidence is
against a finding that the veteran has PTSD, further
discussion of in-service stressors and consideration of any
association between those in-service stressors and current
symptomatology, is not necessary. 38 C.F.R. § 3.304(f)
(2007). Indeed, without a finding that the veteran has PTSD,
service connection for the disorder cannot be awarded. See
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in which
the Court held that, in the absence of proof of a present
disability, there can be no valid claim). Consequently, the
preponderance of the evidence is against the veteran's claim
for service connection for PTSD, and the reasonable doubt
doctrine is not for application. See, 38 U.S.C.A. § 5107(b)
(West 2002).
B. Service Connection for Remaining Disabilities
On November 2, 1994, Congress enacted the "Persian Gulf War
Veterans' Act," Title I of the "Veterans' Benefits
Improvements Act of 1994," Public Law 103-446. That statute
added a new section 1117 to Title 38, United States Code,
authorizing VA to compensate any Persian Gulf veteran
suffering from a chronic disability resulting from an
undiagnosed illness or combination of undiagnosed illnesses
(including, for example, chronic fatigue syndrome) which
became manifest either during active duty in the Southwest
Asia theater of operations during the Persian Gulf War, or to
a degree of 10% or more within a presumptive period following
service in the Southwest Asian theater of operations during
the Persian Gulf War. 38 U.S.C.A. § 1117 (West 2002);
38 C.F.R. § 3.317 (2007).
On December 27, 2001, the President signed into law the
Veterans Education and Benefits Expansion Act of 2001,
Pub. L. No. 107-103, 115 Stat. 976 (2001). In particular,
the Act amended 38 U.S.C.A. §§ 1117 and 1118, pertaining to
compensation for disabilities occurring in veterans of the
Persian Gulf War. In June 2003, VA promulgated regulations
to implement the Act. See Compensation and Pension
Provisions of the Veterans Education and Benefits Expansion
Act of 2001, 68 Fed. Reg. 34,539 (June 10, 2003) (now
codified at 38 C.F.R. § 3.317). With exceptions not here
applicable, current law requires that in order to obtain
compensation for an undiagnosed illness, the disability in
question must not be attributed to any known clinical
diagnosis. 38 C.F.R. § 3.317(a)(1)(ii) (2007).
If a disability is shown to be attributable to a known
clinical diagnosis, service connection may be established for
the diagnosed entity on a "direct" basis. Generally
speaking, "direct" service connection is warranted where
the evidence of record establishes that a particular
disability resulted from personal injury suffered or disease
contracted in the line of duty in the active military, naval,
or air service. 38 U.S.C.A. § 1110 (West 2002). That an
injury or disease occurred in service is not enough; there
must be chronic disability resulting from that injury or
disease. If there is no showing of a resulting chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b) (2007). Service
connection may be granted for any injury or disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease or injury
was incurred in service. 38 C.F.R. § 3.303(d) (2007).
In addition, service connection for certain diseases, such as
arthritis, may also be established on a presumptive basis by
showing that it manifested itself to a degree of 10 percent
or more within one year from the date of separation from
service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2007).
1. Chronic Fatigue
Service treatment records are negative for complaints of,
treatment for, or findings of any such relevant disability.
Fatigue (or tiredness) was first noted at a VA systemic
conditions examination conducted in February 1995. The
examiner diagnosed chronic fatigue syndrome by history and
concluded that the veteran's complaints of fatigue were not
etiologically related to his Persian Gulf service.
Subsequent medical records reflect complaints of fatigue from
March 1997 to October 1999. No more recent findings of
fatigue are shown in the post-service medical records until
July 2007, when the veteran underwent a VA chronic fatigue
syndrome examination. At that time, the veteran described
fatigue only after some exercising but denied fatigue lasting
24 hours or longer after exercise or an acute onset of
fatigue. The examiner concluded that the veteran does not
meet the criteria for chronic fatigue syndrome.
Clearly, therefore, medical evidence of record does not
include a diagnosis of chronic fatigue syndrome. With regard
to the etiology of the veteran's complaints of fatigue, the
Board acknowledges that the February 1995 VA examiner
concluded that the veteran's complaints of tiredness and
fatigue are not the result of his Persian Gulf service. The
claims folder contains no competent evidence refuting this
doctor's opinion.
In light of this unrefuted medical opinion, as well as the
relatively few complaints of fatigue and tiredness in recent
years, the Board finds that the veteran does not have an
undiagnosed illness exhibited by fatigue which became
manifest to a degree of 10% or more within a presumptive
period following service in the Southwest Asian theater of
operations during the Persian Gulf War. 38 U.S.C.A. § 1117
(West 2002); 38 C.F.R. § 3.317 (2007).
Further, the claims folder contains no competent evidence of
a diagnosis of a disability manifested by fatigue. Without
such evidence, service connection for such a disorder cannot
be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992) (in the absence of proof of a present disability,
there can be no valid claim) and Rabideau v. Derwinski,
2 Vet. App. 141 (1992) (Congress specifically limited
entitlement for service-connected disease or injury to cases
where such incidents have resulted in a disability). Based
on the evidentiary posture discussed herein, the
preponderance of the evidence is clearly against the claim
for service connection for a disability manifested by
fatigue. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
The benefit-of-the-doubt rule does not apply, and this
service connection claim must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).
2. Shortness of Breath
The veteran has pursued a claim for service connection for
disability exhibited by shortness of breath. Service
treatment records, however, are negative for complaints of,
treatment for, or findings of any such relevant disability.
Further, the numerous respiratory examinations, including
pulmonary function testing and chest X-rays, that have been
completed since the veteran's separation from service have
been consistently normal.
Absent evidence of complaints, or findings, of shortness of
breath, the Board finds that the veteran does not have an
undiagnosed illness which became manifest to a degree of 10%
or more within a presumptive period following service in the
Southwest Asian theater of operations during the Persian Gulf
War. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317
(2007).
Further, the claims folder contains no competent evidence of
a diagnosis of a disability manifested by shortness of
breath. Without such evidence, service connection for such a
disorder cannot be awarded. See Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992) (in the absence of proof of a present
disability, there can be no valid claim) and Rabideau
v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically
limited entitlement for service-connected disease or injury
to cases where such incidents have resulted in a disability).
Based on the evidentiary posture discussed herein, the
preponderance of the evidence is clearly against the claim
for service connection for a disability manifested by
shortness of breath. See Hickson v. West, 12 Vet. App. 247,
253 (1999). The benefit-of-the-doubt rule does not apply,
and this service connection claim must be denied.
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49,
54 (1990).
3. Insomnia
The veteran has also pursued a claim for service connection
for disability exhibited by insomnia. Service treatment
records, however, are negative for complaints of, treatment
for, or findings of any such pertinent disability. According
to post-service medical records, in March 1999, the veteran
sought treatment for complaints of insomnia, including being
able to sleep only 3-4 hours per night. The examiner
described the veteran's complaints as a sleep pattern
disturbance. At the July 2007 VA examination, the veteran
complained of insomnia and reported that, with medication, he
can sleep from approximately 8:00 p.m. to midnight and
thereafter for a short period of time beginning around 4:00
a.m. or 5:00 a.m.
By the veteran's own admission, his sleep disturbance has
improved, and he is now able to sleep longer. Such evidence
does not support a finding that the veteran has an
undiagnosed illness which became manifest to a degree of 10%
or more within a presumptive period following service in the
Southwest Asian theater of operations during the Persian Gulf
War. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317
(2007).
Further, the claims folder contains no competent evidence of
a diagnosis of a disability manifested by insomnia. Without
such evidence, service connection for such a disorder cannot
be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992) (in the absence of proof of a present disability,
there can be no valid claim) and Rabideau v. Derwinski,
2 Vet. App. 141 (1992) (Congress specifically limited
entitlement for service-connected disease or injury to cases
where such incidents have resulted in a disability). Based
on the evidentiary posture discussed herein, the
preponderance of the evidence is clearly against the
veteran's claim for service connection for a disability
manifested by insomnia. See Hickson v. West, 12 Vet.
App. 247, 253 (1999). The benefit-of-the-doubt rule does not
apply, and this service connection claim must be denied.
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49,
54 (1990).
4. Ringing in the Ears
In addition, the veteran has pursued a claim for service
connection for ringing in his ears. Significantly, however,
service treatment records are negative for complaints of,
treatment for, or findings of any such pertinent disability.
According to post-service medical records, at a February 1995
VA systemic conditions examination, the veteran described
tinnitus since 1992. The remainder of the post-service
medical reports are, however, negative for complaints, and
findings, of ringing in the veteran's ears. In January 1992,
the veteran complained of a two-month history of vertigo, but
he did not describe ringing in his ears. An examination
conducted at that time demonstrated normal ears. The
treating physician diagnosed "vertigo-acute
labyrinthitis."
Without competent evidence of findings of ringing in the
veteran's ears, the Board must find that the veteran does not
have an undiagnosed illness exhibited by ringing in the ears
which became manifest to a degree of 10% or more within a
presumptive period following service in the Southwest Asian
theater of operations during the Persian Gulf War.
38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2007).
Further, without competent evidence of a diagnosis of
tinnitus, service connection for such a disorder cannot be
awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992) (in the absence of proof of a present disability,
there can be no valid claim) and Rabideau v. Derwinski,
2 Vet. App. 141 (1992) (Congress specifically limited
entitlement for service-connected disease or injury to cases
where such incidents have resulted in a disability). Based
on the evidentiary posture discussed herein, the
preponderance of the evidence is clearly against the
veteran's claim for service connection for tinnitus. See
Hickson v. West, 12 Vet. App. 247, 253 (1999). The
benefit-of-the-doubt rule does not apply, and this service
connection claim must be denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).
5. Right Upper Extremity Symptoms
The veteran describes pain in his right upper extremity.
Service treatment records are negative for complaints of,
treatment for, or findings of a right upper extremity
disability. According to post-service medical reports,
X-rays taken of the veteran's right shoulder in April 2004
showed mild degenerative changes of the acromioclavicular
joint.
Significantly, evidence of record show that the veteran's
right upper extremity complaints have been attributed to the
known clinical diagnosis of degenerative changes (e.g.,
arthritis). As a result, service connection cannot be
granted for such symptomatology as due to an undiagnosed
illness. 38 C.F.R. § 3.317(a)(1)(ii) (2007).
As to the question of whether service connection is warranted
for arthritis of the veteran's right shoulder on a direct
basis, the Board notes that right shoulder disability was not
exhibited in service and arthritis of the right shoulder was
first diagnosed in April 2004-more than 13 years after the
veteran's discharge from service. Significantly, the claims
folder contains no competent evidence associating this
currently diagnosed disability with the veteran's active
service. Based on this evidentiary posture, the
preponderance of the evidence is clearly against the
veteran's claim for service connection for such a disability.
See Hickson v. West, 12 Vet. App. 247, 253 (1999). The
benefit-of-the-doubt rule does not apply, and service
connection for arthritis of the right shoulder must be
denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.
App. 49, 54 (1990).
6. Back Symptoms
Throughout the current appeal, the veteran has described back
pain. Service treatment records are essentially negative for
complaints of, treatment for, or findings of a back
disability. At the September 1991 separation examination,
the veteran denied ever having experienced recurrent back
pain. The evaluation demonstrated that the veteran's spine
was normal. Post-service X-rays taken of the veteran's back
in April 2001 showed moderate degenerative mid-thoracic
spondylosis.
Significantly, evidence of record shows that the veteran's
back complaints have been attributed to the known clinical
diagnosis of moderate degenerative mid-thoracic spondylosis.
As a result, service connection cannot be granted for such
symptomatology as due to an undiagnosed illness. 38 C.F.R.
§ 3.317(a)(1)(ii) (2007).
As to the question of whether service connection is warranted
for chronic back disability on a direct basis, the Board
notes that degenerative mid-thoracic spondylosis was not
diagnosed (and was not found on radiographic films) until
April 2001-more than 10 years after the veteran's discharge
from service. Significantly, the claims folder contains no
competent evidence associating currently back disability with
the veteran's active service. Based on this evidentiary
posture, the preponderance of the evidence is clearly against
the veteran's claim for service connection for such a
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999). The benefit-of-the-doubt rule does not apply, and
service connection for arthritis of the right shoulder must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49, 54 (1990).
ORDER
Service connection for PTSD is denied.
Service connection for disability exhibited by chronic
fatigue, to include as a result of an undiagnosed illness, is
denied.
Service connection for disability exhibited by shortness of
breath, to include as a result of an undiagnosed illness, is
denied.
Service connection for disability exhibited by insomnia, to
include as a result of an undiagnosed illness, is denied.
Service connection for disability exhibited by ringing in the
ears, to include as a result of an undiagnosed illness, is
denied.
Service connection for right upper extremity disability, to
include as a result of an undiagnosed illness, is denied.
Service connection for back disability, to include as a
result of an undiagnosed illness, is denied.
REMAND
After a careful review of the record, the Board finds that a
remand of the veteran's left shoulder and bilateral knee
claims is necessary. Specifically, and for the following
reasons, the Board believes that the veteran should be
accorded VA examinations that address the nature, extent, and
etiology of his left shoulder and bilateral knee pathology.
On examination, the examiners should have access to, and an
opportunity to review, the veteran's claims folder in
conjunction with the evaluations. See 38 U.S.C.A. § 5103A(d)
(West 2002); 38 C.F.R. § 3.159(c)(4) (2007); and McLendon
v. Nicholson, 20 Vet. App. 79 (2006) (stipulating that VA's
duty to assist veterans, pursuant to the VCAA, includes the
duty to obtain a medical examination and/or opinion when
necessary to make a decision on a claim).
Left Shoulder
Service treatment records reflect the veteran's periodic
complaints of left shoulder pain since February 1983. An
examiner suspected osteoarthritis at a periodic examination
conducted in December 1990. Bursitis was shown at the
September 1991 separation examination.
Post-service medical records reflect treatment for, and
evaluation of, a left shoulder disability variously diagnosed
as: bursitis (in December 1992 and February 1995), minimal
degenerative joint disease (in February 1995), and arthralgia
(in September 1997). In light of the in-service and
post-service left shoulder complaints and findings, the Board
finds that a VA examination is warranted to determine the
nature, extent, and etiology of the currently diagnosed
disabilities of this joint.
Knees
Service treatment records reflect the veteran's complaints of
occasional "trick" knee since August 1975. An examiner
suspected osteoarthritis of the left knee at the periodic
examination conducted in December 1990. The veteran's
complaints of "trick" knee were acknowledged at the
September 1991 separation examination.
Post-service medical records reflect treatment for, and
evaluation of, a bilateral knee disability variously
diagnosed as: bilateral patellofemoral syndrome (in February
1995), chondromalacia of the right knee (in September 1997),
arthralgia of both knees (in September 1997), degenerative
joint disease of the knees (in November 1998), and mild
degenerative changes of the right knee (in June 2000). In
light of the in-service bilateral knee complaints as well as
the post-service diagnoses, the Board finds that a VA
examination is warranted to determine the nature, extent, and
etiology of the currently diagnosed disabilities of these
joints.
Accordingly, further appellate consideration will be deferred
and this case is REMANDED for the following actions:
1. Obtain copies of records of left
shoulder and knee treatment that the
veteran may have received at the VA
Medical Center in San Juan, the
Commonwealth of Puerto Rico since March
2005. Associate all such available
records with the claims folder.
2. Thereafter, the veteran should be
scheduled for a VA orthopedic
examination to determine the nature,
extent, and etiology of any left
shoulder and bilateral knee
disabilities that he may have. The
claims folder must be made available to
the examiner in conjunction with the
examination. All indicated studies,
including X-rays, should be conducted.
All pertinent pathology should be noted
in the examination report.
For any left shoulder disability and
bilateral knee disorder diagnosed on
examination, the examiner should
express an opinion as to whether it is
at least as likely as not, i.e., a
50 percent probability or greater, that
such disorder(s) had its(their)
clinical onset in service or is(are)
otherwise related to active service
(including the various in-service
episodes of complaints of left shoulder
pain and "trick" knee). Complete
rationale should be given for all
opinions reached.
3. Following the completion of the
above, the issues of entitlement to
service connection for left shoulder
symptoms, to include as a result of an
undiagnosed illness, and entitlement to
service connection for bilateral knee
symptoms, to include as a result of an
undiagnosed illness should be
re-adjudicated. If the decisions
remain in any way adverse to the
veteran, he should be provided with an
SSOC. The SSOC must contain notice of
all relevant actions taken on the
claims for benefits, to include the
applicable law and regulations
considered pertinent to the issues
remaining on appeal as well as a
summary of the evidence of record. An
appropriate period of time should be
allowed for response.
No action is required of the veteran until he is notified by
the RO; however, the veteran is advised that failure to
report for any scheduled examination may result in the denial
of his claim. 38 C.F.R. § 3.655 (2007). The veteran has the
right to submit additional evidence and argument on the
matters that the Board has remanded. Kutscherousky v. West,
12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See
38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs